摘要
我國刑法第一七四條第二項規定，「放火燒燬前項之自己所有物，致生公共危險者，處六月以上五年以下有期徒刑。」，學說上，大致認定當條文中具有「致生…危險」之構成要件「結果要素」者，屬於「具體危險犯」之規定。除了上述「致生公共危險」外，實定法中尚有「致生…往來之危險 」、「致生危險於…生命、身體健康」或者「致生危害於公安」等相類似的立法型態。 對於前階段的危險行為，有無在因果關係上接續的「致生公共危險」，法官必須就具體的個案事實，逐一審酌判斷，是否存在「具體的公共危險」。然而，國內多數實務判決對於行為人是否已「致生公共危險」之範圍及其判斷，卻仍未有相當的釐清。本文主要透過觀察我國學說與實務見解，探討我國刑法以「致生公共危險」作為結果要素所含括的法益內涵範圍，以及實務判決對於「致生公共危險」此一構成要件要素又應如何解釋與適用方為妥適，進行有關之研究與討論。
並列摘要
In Criminal Code of the Republic of China (the Criminal Code), the elements “endangers…” or “causes danger…for…” are the facts to be proved in many circumstances. For example, in Chapter 11 “Offenses Against Public Safety”, Article 174 reads, “A person who endangers public safety by setting fire to and destroying a thing belonging to him that is specified in the preceding paragraph shall be sentenced to imprisonment for not less than six months but not more than five years.” The phrase “endangers public safety” is an element for Article 174, and is shared by other articles in Chapter 11, too. Similar ideas, such as “causes danger… for public transport”, “endangers the life, body or health of another” or “the danger to public danger ”, are often the components of the articles in the Criminal Code. Theoretically, such people which are deemed to have committed offenses against public safety in legal articles are categorized as Offender of Concrete Danger. With respect to the dangerous behavior at the previous phase, judges need to give the rulings about the delict of the concrete danger to public safety based on the presence of the causal relationship between the action and the danger of public safety, presented in factual cases. However, the judgment criteria for the danger to public safety made in Taiwan is ill-defined. The main problem is the unclear range of actions which might pose danger. This article is to, through reviewing the theories and factual cases in Taiwan, discuss how the legal interest range of actions with danger to public safety comprises options for legislative modes. Moreover, the suitable way for explaining the deciding factors for the danger to public safety and the appropriate methods of application are included in the research agenda .